ss Salmons also seeks to overturn an agreement uncontested by 98% of the class members on the ground that under the
Pettway case, the "views of the class representatives are entitled to great weight." Salmons's brief at 21.
Pettway bears no resemblance to this case because therein seventy percent of the class members, including class representatives, objected to the settlement reached by class counsel. Herein, we simply refuse to unravel a $35 million settlement because less than 2% of the class members are dissatisfied with it. Indeed, since Professional, Limerick, Rose, and Renu executed releases, Salmons re-mains the sole class member who can legally challenge the settlement. Salmons thus would have us dismantle a settlement that was seven years in the making against thirty-seven defendants for $35 million solely on the basis that its view of the agreement should prevail over the interests of all the other class members. We decline that invitation.
C. Propriety of Decision Approving Class Settlement
Salmons next argues that the trial court's scrutiny of the settlement agreement and class counsel's role in its procurement was legally insufficient. Salmons's brief at 22-27. In Buchanan v. Century Federal Savings and Loan Ass'n, 259 Pa.Super. 37, 393 A.2d 704, 709 (1978) (footnotes omitted), this Court set forth the legal principles to which a trial court must adhere in considering whether to approve a class settlement:
Prior to approving a class settlement, a lower court must conclude that it is fair and reasonable and adequately protects the members of the class. Although there is no formula for making such a determination, the criteria heretofore employed by the courts include evaluations of (1) the risks of establishing liability and damages, (2) the range of reasonableness of the settlement in light of the best possible recovery, (3) the range of reasonableness of the settlement in light of all the attendant risks of litigation, (4) the complexity, expense and likely duration of the litigation, (5) the stage of the proceedings and the amount of discovery completed, (6) the recommendations of competent counsel, and (7) the reaction of the class to the settlement.
See, e.g., Girsh v.
Jepson, 521 F.2d 153 (3d Cir. 1975). In effect the court should conclude that the settlement secures an adequate advantage for the class in return for the surrender of litigation rights. As with valuation problems in general, there will usually be a difference of opinion as to the appropriate value of a settlement. For this reason, judges should analyze a settlement in terms of a "range of reasonableness" and should generally refuse to substitute their business judgment for that of the proponents. 3 H. Newberg, Newberg on Class Actions, § 5610b (1977).
In Dauphin Deposit Bank and Trust Co. v. Hess, 556 Pa. 190, 727 A.2d 1076, 1079 (1999), our Supreme Court approved of the Buchanan decision and indicated "that the Buchanan case states the appropriate factors to consider in approving or disapproving a class action settlementt.]" In Dauphin, the Court also ruled that "settlements are favored in class action lawsuits and that the standard of review of the trial court's acceptance or rejection of a settlement proposal is abuse of discretion." Id. at 1080. Employment of an abuse-of-discretion standard is also in accord with the Buchanan decision where we opined:
The question on appeal from an order approving or disapproving a class settlement is whether the lower court abused its discretion in reaching its decision.
Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir. 1974). Under Pennsylvania law, generally, an appellate court will find an abuse of discretion if the record shows that, "the law has been overridden or misapplied, or that the judgment exercised by the Court was manifestly unreasonable or motivated by partiality, prejudice, bias or ill-will."
Rosenberg v. Silver, 374 Pa. 74, 77,
97 A.2d 92, 94 (1953).
Buchanan, supra at 709.
In the present case, the trial court was cognizant of and discussed the Buchanan factors and analyzed those factors, to the extent that they were relevant. Trial Court Opinion, 3/11/09, at 5-10. We conclude that the court's approval of the settlement did not constitute an abuse of discretion. The first factor, the risk of establishing liability and damages, was significant because there were over thirty defendants and a contest over the cause of the fire. The $35 million fund obtained was within the range of reasonableness of the settlement in light of the best possible recovery, as follows. Class counsels' expert witness on damages estimated that the range of damages were between $31 and $41.7 million dollars while the defendants' economists claimed damages were one-third of that, or between $10 and $12 million. Clearly, the reasonableness of the settlement in light of the risks of litigation was extremely favorable to the class since it was within the range of damages that class plaintiffs could prove and was three times the damages estimates of the defense expert witnesses. With the number of defendants involved, litigation would have been complex and expensive; instead, the class only had to proceed with a shorter trial against two defendants. If the other defendants had remained in the action, making accusations against each other and obfuscating matters, the jury may have not returned a verdict against many of the settling defendants.
As to the fifth factor, discovery was completed, and counsel had a good basis for deciding which settlement amounts to accept from which defendants. Competent counsel, which Salmons itself asked to be appointed class counsel, recommended the settlement. Finally, as noted above, nearly all of the class members approved of the settlement. Thus, we conclude that the trial court's acceptance of the settlement proposal was not an abuse of discretion.
D. Salmons's Specific Objections To Propriety Of Class Settlement
Salmons has raised a series of specific objections to the class settlement. Since we have determined that the trial court did not abuse its discretion in approving the overall settlement, we question Salmons's ability to raise piecemeal objections to its propriety. Nevertheless, we will briefly discuss each of Salmons's contentions. First, Salmons argues that class counsel had a conflict of interest in that the "agreement, negotiated and executed by Class Counsel, has a provision which would allow defendants to pay in and take out the other side as 'class members.'" Salmons's brief at 25. Salmons also raises the specter of collusion among class counsel and these defendants.
The class certification orders entered in this action prohibited a defendant from being considered a member of the class. The first class certification was:
All persons and entities who suffered losses resulting from the fire that started on May 15, 2001 in the Continental
Business Center situate in Bridgeport, Pennsylvania. Excluded from the class are defendants, additional defendants which may be named later, and their directors, officers, employees, affiliates and subsidiaries, as well as government entities.
Order of Court, 4/14/03. Then, since the class was unaware of those defendants' potential liability in connection with the fire when the original action was instituted, the class brought the 2003 lawsuit against new defendants. The second class certification order altered the definition of class plaintiffs so as to eliminate "additional defendants which may be named later." See Order of Court, 1/6/05. This language was deleted to prevent another defendant from excluding an injured plaintiff as a class member merely by asserting a claim against that plaintiff. Under the January 6, 2005 order, as long as the class had sued the defendant, that defendant was precluded from participating in the settlement.
Then, in recognition that certain defendants were both partially responsible for but also injured parties vis a vis the fire, class counsel negotiated an agreement with some defendants wherein they paid settlement amounts but were going to be permitted to make a claim as a class plaintiff. These defendants were recognized by class counsel as injured settling defendants that would otherwise be class members but for the fact that they had some liability in connection with the matter. Class counsel did agree to allow the injured settling defendants to participate in the settlement pool as class plaintiffs. Counsel reasoned that these injured settling defendants could be considered class members because, as a result of the settlement, class plaintiffs would no longer have direct claims against those defendants.
Despite the agreement, the trial court refused to permit the proposed change in the definition of the class. Thus, the class settlement order provided, "As is consistent with previous Orders of this Court, the Settlement does not amend the Class definition, and no Settling Defendant shall be permitted to make a claim against the Settlement Fund as a Class Member." Order of Court, 7/8/08 (emphasis added). In light of the trial court's action, we conclude that class counsel's attempt to obtain relief for entities both damaged by and partially responsible for the fire does not vitiate the overall settlement reached and approved herein. Salmons's certainly suffered no prejudice from counsel's action.
Class counsel could be faulted if counsel: 1) failed to sue a responsible defendant; 2) improperly permitted a culpable party to be dismissed; or 3) negotiated an unsupported, low settlement with a defendant with potential liability. However, Salmons fails to substantiate the existence of any of these types of collusion. It does not delineate the name of a single defendant with potential liability that was not a party or was improperly dismissed from this action, nor does it establish by any specific averments that a single liable defendant paid less than it should have tendered. In this portion of its brief, Salmons also continues to raise the untenable position that it alone is class counsel's client. See Salmons's brief at 27 ("The fact of the matter is that it is inconvenient for Class Counsel to have a client in this litigation."). The fact of the matter remains that 98% of class counsel's clients raised no objection to the settlement. Thus, we reject the assertion that the class action should be overturned based upon purported collusion among class counsel and the injured settling defendants.
Next, Salmons raises two arguments related to subrogation. First, it avers that the trial court improperly permitted some insurers to be subrogated as to a portion of the proceeds received by that insurer's insured. It posits, "The class members have a right to recover their unreimbursed losses before a single penny can be paid to subrogating insurers." Salmons's brief at 28. Salmons also argues that the decision permitting subrogation to be paid to certain insurers conflicts with a prior decision made by the trial court in this matter.
Salmons was uninsured and had no subrogated insurance company seeking a portion of its funds. Furthermore, none of the other subrogated insurers will receive a portion of Salmons's settlement because each award to each class member contains a subrogation portion as between the insured class member and that class member's insurer. Thus, the amount that Salmons will receive will be unaffected by the fact that some insurance companies will be subrogated to the portion of the settlement proceeds paid to those companies' insureds. Salmons therefore raises an argument that it does not have standing to raise. See Epstein v. Saul Ewing, LLP, 2010 PA Super 190.
In another subrogation argument, Salmons posits, "The Agreement fails to convey the benefit of the $5 million in subrogation liens which were tendered to the class by Erie and CNA" in exchange for the release. Salmons's brief at 32. As to this position, that Salmons did not receive the benefit of the subrogation claims released by Erie and CNA, we note the following. Salmons did not purchase insurance from either Erie or CNA and has no right to seek additional amounts arising from the fact that these insurance companies waived their subrogation rights in favor of their customers. That waiver inured to the benefit of those insurers' clients, which paid for coverage.
Finally, Salmons claims a due process violation since it is precluded by the order approving the class settlement from appealing the claims administrator's assessment of the amount of its damages. See Salmons's brief at 34. The core requirements of due process are notice and the opportunity to be heard "at a meaningful time and in a meaningful matter." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); In re R.M., 567 Pa. 646, 790 A.2d 300, 305 (2002). In this case, Salmons's due process concerns are illusory. When this action was twice certified as a class action, Salmons had opportunities to elect out of this lawsuit and proceed with its own. It failed to avail itself of this opportunity. It was evident that: 1) each plaintiff in the class suffered different amounts of damages; 2) once settlement or verdict was reached, it would benefit the class as a whole; and 3) a procedure would have to be employed to determine each plaintiffs damages award. By seeking class-action resolution of its claim, Salmons necessarily assented to a system for processing the monetary awards and should have envisioned the practice employed.
Additionally, Salmons had an opportunity to object and be heard at the June 23, 2008 fairness hearing conducted on the settlement; it availed itself of this right, as well as its right to file these appeals from the approval of the settlement. We are therefore unpersuaded by Salmons's due process arguments. It had notice and an opportunity to be heard.
E. Attorneys' Fees
Finally, Salmons challenges the award of attorneys' fees. Pa.R.C.P. 1716 outlines the pertinent factors to be considered in connection with the award of attorneys' fees in a class action:
In all cases where the court is authorized under applicable law to fix the amount of counsel fees it shall consider,
among other things, the following factors:
(1) the time and effort reasonably expended by the attorney in the litigation;
(2) the quality of the services rendered;
(3) the results achieved and benefits conferred upon the class or upon the public;
(4) the magnitude, complexity and uniqueness of the litigation; and
(5) whether the receipt of a fee was contingent on success.
"[T]he order in which these factors are listed in the Rule is not in any way intended to suggest an order of priority on comparative importance in the determination of the fee." Explanatory Comment. A trial court's award of attorneys' fees is subject to an abuse-of-discretion standard of review. Signora v. Liberty Travel, Inc., 886 A.2d 284, 292 (Pa.Super. 2005).
Herein, discovery transpired over six years, and class counsel obtained two class certifications and filed three complaints against thirty-seven defendants. Counsel reviewed hundreds of thousands of documents, took 127 depositions, and secured eight expert witnesses who authored twenty-six expert reports. In turn, counsel reviewed forty-one expert reports from thirty-six defense expert witnesses. Counsel also prepared twenty-four motions in limine while reviewing and responding to eighty-three defense motions. There was a monthlong pretrial proceeding. Class counsel then prepared for and engaged in a trial as to two defendants, one of which settled during its course. After what appeared to be a defense verdict in the making, counsel managed to obtain another $1 million settlement from the remaining defendant. Class counsel prepared briefs for these five appeals and prosecuted and defended against numerous motions on appeal. This time commitment was extensive and supported the fee in question.
Defendants estimated overall damages at $10 to $12 million, one-third of the overall settlement. The $35 million settlement was in the range of damages set by the expert witness for the class. Thus, the settlement was a success and conferred a significant benefit upon the class. This case was immensely complex with 321 plaintiffs and thirty-seven defendants and spanned many years. The question of liability for a fire is not a routine negligence question. Finally, class counsels' fee was entirely contingent, and it had to advance over $1 million in costs to pursue this litigation to a successful conclusion. All of these factors militate in favor of the award in question, and we conclude that the trial court did not abuse its discretion in this case.
The appeals at 2925 and 2927 EDA 2008 are affirmed.
IV. Appeal of Mr. Haviland and The Haviland Law Firm LLC at 774 EDA 2009
In this appeal, Mr. Haviland and The Haviland Law Firm LLC challenge the May 16, 2008 order that restrained Mr. Haviland from sending a proposed letter to class members and from communicating with class members without prior approval of the court. We now examine the pertinent factual findings of the trial court.
The May 24, 2001 complaint that initiated the Bridgeport Fire Litigation was filed by the law firm of Levin. At that time, Mr. Haviland was a member of Levin, but he joined Kline Specter shortly after the litigation was commenced. On November 8, 2001, the appearance of Levin as counsel of record for the six named plaintiffs, which had not yet been named class representatives, was withdrawn and the appearance of Kline Specter was entered. Professional, Limerick, Rose, Salmons, Renu, and Purdy-Pak sought class certification, asked to be named the class representatives, and requested that High Swartz and Kline Specter be appointed as class counsel. Both of those requests were granted in an April 14, 2003 memorandum and order. Mr. Haviland's name does not appear in that document, and he was not named as class counsel. Thus, Kline Specter was counsel of record for Professional, Limerick, Rose, Salmons, Renu, and Purdy-Pak as well as co-class counsel.
On September 6, 2006, Mr. Haviland notified Kline Specter that he intended to work for The Haviland Law Firm LLC and sent a letter to various class members asking them to decide whether The Haviland Law Firm LLC or Kline Specter should be appointed class counsel. On September 7, 2006, Kline Specter filed a petition seeking to prevent Mr. Haviland from communicating with the class. On September 11, 2006, the court granted Kline Specter's September 7, 2006 request and ordered Mr. Haviland to refrain from attempting to solicit class members in order to obtain his appointment as class counsel. On September 13, 2006, Mr. Haviland filed both a petition seeking to be appointed as class counsel and a praecipe changing the entry of appearance of counsel of record on behalf of Professional, Limerick, Rose, Salmons, and Renu, but not Purdy-Pak, from Kline Specter to himself and The Haviland Law Firm LLC. Kline Specter responded to the September 13, 2006 petition and also asked the court to strike Mr. Haviland's praecipe for change of entry of appearance of counsel. On October 10, 2006, Mr. Haviland filed an appeal to this Court from the September 11, 2006 order preventing him from communicating with class members.
On November 17, 2006, the trial court conducted the first of three evidentiary hearings on Mr. Haviland's September 13, 2006 petition seeking appointment as class counsel. Then, on December 13, 2006, Mr. Haviland voluntarily praeciped to withdraw his September 13, 2006 petition seeking to be appointed class counsel. By order dated December 19, 2006, the trial court directed the withdrawal of Mr. Haviland's September 13, 2006 petition, and reaffirmed that Kline Specter was to remain as co-class counsel. The court allowed Mr. Haviland to act as personal counsel on behalf of Professional, Limerick, Rose, and Renu. This Court vacated the September 11, 2006 restraining order against Mr. Haviland and directed that the trial court enter an order that more explicitly delineated the limitations on contact with class members that the trial court intended to impose on Mr. Haviland. In re Bridgeport Fire Litigation, supra.
As a result, on February 21, 2008, Mr. Haviland sought permission from the trial court to solicit communications from all the class members, and he tendered for court approval a letter that he wanted to send to the plaintiffs herein. By that time, class counsel had negotiated a settlement with some defendants and trial was imminent. The letter read:
This is to advise you that I have left Kline and Specter law firm, one of the Court-appointed class counsel in the
Bridgeport Fire Litigation. I have formed a new law firm, The Haviland Law Firm, LLC, which has offices at the below listed address. As you may re-call, back in October 2001, I left the law firm of Levin, Fishbein, Sedran Berman, at which I had filed the original
Bridgeport Fire lawsuit on behalf of several businesses, to go to Kline Specter.
In the Fall of 2006, you received a letter from Judge O'Neill in the
Bridge-port Fire litigation indicating that Kline Specter would continue to act as counsel for the class in this case. The same remains true today. With the Court's consent, however, I am writing to you to notify you that I continue to act as personal counsel to 5 of the 6 named representative plaintiffs who filed the original lawsuit, namely, Professional Flooring Co. Inc., Limerick Carpet Flooring, Inc., Rose Line Inc., Salmons Industries, Inc. a/t/a Millie Switch, and Renu Electronics, Inc. I also continue to act as personal counsel to absent class member George Automotive, Inc.
I have sent this letter to you to assure that you have been notified of my departure from Kline Specter, and of my continued individual representation of certain plaintiffs in the case. If you have any questions, you may call me at your convenience.
After Mr. Haviland sought permission to send this letter, Kline Specter countered with a motion seeking to prevent Mr. Haviland from communicating with the class without prior court approval. After five days of hearings, on May 16, 2008, the court entered an order barring Mr. Haviland from sending the proposed letter to any class member other than his personal clients and also barring him from communicating with any class member other than his personal clients without prior approval of the trial court.
The court concluded that the letter that Mr. Haviland wanted to send to the class members was misleading in nearly all respects. First, the letter incorrectly implied that Mr. Haviland recently left Kline Specter and created a new law firm when he had done so eighteen months previously. Second, the letter failed to define legal terminology such as "class counsel" and "personal counsel" and the vital distinctions between the two terms. Third, the letter was confusing because it stated, "As you may recall, back in October 2001, I left the law firm of Levin, Fishbein, Sedran Berman, at which I filed the original Bridgeport Fire lawsuit on behalf of several businesses, to go to Kline Specter." This sentence was unclear because the class was not certified in 2001 and 98% of the class members would not "recall" the fact set forth in the letter. In addition, the court observed that the sentence set forth that Mr. Haviland's 2001 change in law firms did not affect his ability to handle this action, thus creating the false impression that his 2006 change in law firms from Kline Specter to The Haviland Law Firm LLC also would not affect his ability to handle the Bridgeport Fire Litigation. The court noted that this implication was incorrect because Kline Specter, not Mr. Haviland, was appointed as co-class counsel and had operated as such since the action was designed as a class action.
The court additionally found that the fourth and fifth sentences of the letter were wrong because they indicated that all class members received a letter in fall 2006 from the trial court that Kline Specter would remain as class counsel following Mr. Haviland's departure from that firm. However, only the six named class representatives received that communication. Finally, the trial court was displeased with the phrase that the letter was being sent with the trial court's consent because that language implied that the trial court approved or endorsed Mr. Haviland's representation of his clients in a personal capacity, which was untrue. The trial court had one last problem with content:
Finally, in the Proposed Letter, Mr. Haviland requests that the recipient Class Members call
him at their convenience.
This request juxtaposed with the misleading statement that he still represents certain Class Members who are the Class Representatives in this case would likely serve to delude the recipient Class Members into believing that they can contact Mr. Haviland if they have any legal questions about this litigation. This would be entirely improper. For all matters Bridgeport Fire related, the recipient Class Members must contact their appointed Class Counsel,
not Mr. Haviland. In his request for telephone contact, Mr. Haviland fails to make this vital distinction.
Trial Court Order, 5/16/08, at ¶ 25. Thus, the court found the entire letter inappropriate.
The court refused to permit Mr. Haviland to send the letter because it contained "misleading, confusing and improper statements" and the proposed letter created "a very real risk of disrupting this entire litigation, especially at this precarious moment of partial settlement." Id. at ¶ 26. The court explained that it did not credit "Mr. Haviland's stated motive for sending the letter that he simply wishes to inform former clients of his change of law firms." Id.
The trial court also was troubled by the fact that Mr. Haviland represented at one of the hearings that he had not sent professional announcements about the formation of The Haviland Law Firm, LLC, when Klein Specter established that this representation was untrue because Mr. Haviland had disseminated announcements in that respect. Furthermore, the trial court disapproved of the fact that after he no longer was an attorney with the firm that was named co-class counsel, Mr. Haviland attempted to negotiate settlements in this litigation from several defendants on behalf of the class. In addition, the trial court observed that after he left Kline Specter, Mr. Haviland continued to file legal documents purportedly on behalf of his clients, but obviously with the intent of disrupting the orderly progression of this class action litigation.
The court concluded that the "Proposed Letter represents Mr. Haviland's latest attempt to improperly disrupt this Class Action by soliciting Class Members to contact him about this litigation, and thereby risk irreparably harming the Class in order to advance his own interests." Id. at ¶ 36. It entered the following conclusions of law:
37. Mr. Haviland's Proposed Letter seeks to communicate about this litigation to parties already represented by counsel in this litigation, which is in violation [of] Rule 4.2 of the Pennsylvania Rules of Professional Conduct.
38. The Proposed Letter makes false and misleading statements regarding Mr. Haviland's legal services, which is in violation of Rule 7.1 of the Pennsylvania Rules of Professional Conduct.
39. Mr. Haviland has made various misrepresentations to this Court, which raise questions concerning the law of perjury, 18 Pa.C.SA. § 4902. These include misrepresentations that he never sent professional announcements regarding the formation of The Haviland Law Firm and that Mr. Otis [counsel for a defendant] initiated contact with him concerning settlement negotiations.
40. Mr. Haviland has made unethical misrepresentations damaging to class members in other class action litigation, namely
In re: Lujmm
Marketing and Sales Practices Litigation, 228 F.R.D. 75 (D.Mass. 2005).
41. A court has the authority to issue an injunction restricting communications between a party and the class, provided that the court has laid out specific factual findings demonstrating the need for such an injunction.
Pennsylvania Orthopaedic Society v.
Independence Blue Cross, 885 A.2d 542 (Pa.Super. 2005);
Gulf Oil Co. v. Bernard, 452 U.S. 89,
101 S.Ct. 2193,
68 L.Ed.2d 693 (1981). As detailed atlength
supra, this Court has done so.
42. Furthermore, pursuant to [Pa. R.C.P.] 1713, the Court has broad powers to issue Orders "for the protection of the members of the class."
43. The Court is sensitive to First Amendment concerns raised by an injunction. However, the Court finds that Class Counsel has met its burden in showing that a greater injury would result by refusing the injunction than by granting it.
See id.
44. Pursuant to the framework laid out by the United States Supreme Court in
Gulf Oil and by the Penn-sylvania Superior Court in
Penn-sylvania
Orthopaedic Society, and the aforementioned findings of Facts and Conclusions of Law made by the Court, the Court finds that the prerequisites justifying the issuance of a restraining order have been met.
Id. at ¶¶ 37-44.
In Pennsylvania Orthopaedic Society v. Independence Blue Cross, 885 A.2d 542 (Pa.Super. 2005), we addressed the propriety of an order preventing communications to class members in a class action. In that case, the trial court issued a temporary restraining order that restricted communications by various entities to potential class members. Therein, we first observed that injunctive relief may be granted only when the moving party has established immediate and irreparable harm that cannot be compensated by damages and that greater injury would result by refusing the injunction. We continued that Pa.R.C.P. 1713 grants a trial court authority to issue orders to control a class action. That rule states that "for the protection of the members of the class or otherwise for the fair conduct of the action," that notice "may be given in such manner as the court may direct." Pa. R.C.P. 1713(a)(2) (tracking Federal Rule 23(d)).
We observed that in Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), the United States Supreme Court concluded that Federal Rule 23(d) authorized a trial court supervising a class action to enter orders limiting communications to class members to ensure the orderly administration of these complex cases. In Gulf Oil Co., the district court issued a temporary restraining order limiting communications between an attorney and the putative class, but that court did not issue any factual findings. The Supreme Court specifically held that, due to a potential for abuse involving class communications, "a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties." Id. at 100, 101 S.Ct. 2193. The Court did reverse the district court therein based on that court's failure to make factual findings. It ruled that "an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties." Id. at 101, 101 S.Ct. 2193 (footnote omitted).
In Pennsylvania Orthopaedic Society, we adopted the Gulf Oil Co. rationale and held that under Pa.R.C.P. 1713(a)(2), a trial court presiding over a class action can control communications to class members in order to protect the class or to ensure the fair conduct of the action. We also stated that the temporary restraining order at issue therein was warranted because the trial court identified specific misleading or confusing statements in the class communications that compromised the ability of class members to make informed and reasoned choices regarding their participation in the class and acceptance of settlement.
Herein, the trial court's factual findings are supported by the record. It conducted hearings and identified how nearly every sentence in Mr. Haviland's letter was confusing or misleading. It concluded that Mr. Haviland was not attempting to aid in the advancement and settlement of this class action but rather to promote his own interest. The trial court observed that the class action was in the final stages, settlements had been reached with various defendants, and the matter was about to proceed to trial. It ruled that Mr. Haviland's communication would disrupt the flow of the action, interfere with the class members' ability to obtain funds, and cause irreparable harm to the action itself. In light of its factual determinations, the trial court's decision is unassailable under the applicable law. Hence, we affirm at 774 EDA 2009.
Application for relief filed by Salmons under docket numbers 2925 and 2927 EDA 2008 is dismissed as moot. Application for Peremptory Mandamus filed by Professional under docket number 2924 EDA 2008 is dismissed as moot. Motion to Determine Mootness filed by Class Plaintiffs under docket number 2917 EDA 2008 is dismissed as moot. Application to Quash Appeal filed by Alpha under docket number 2917 EDA 2008 is dismissed as moot. Application to Quash Appeal filed by C.J. Robinson under docket number 2917 EDA 2008 is dismissed as moot. Application to Quash Appeal filed by Cadet under docket number 2917 EDA 2008 is dismissed as moot. Application to Enforce April 20, 2009 order filed by Salmons under docket numbers 2925 and 2927 EDA 2008 is dismissed as moot. Orders affirmed.